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THE 



INTER?^ATIO>^AL 



LAW AND ORDER LEAGUE 



"THE EXECUTIVE POWER AND THE ENFORCE- 
MENT OF THE LAWS," 



0^1.1- 



ADDRESS OF 



/ 

PRESIDENT CHARLES CARROLL BONNEY, 

n 



PITTSBURGH, PENNSYLVANIA, NOV, 21, 1890. 




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V5 



THE EXECUTIVE POWER. 

CONTENTS. 

I. Introductory, - - - - 1 

II. Executive Power in tlie Mother Country, 5 

III. Executive Powei' of the American Union, (> 

IV. Executive Power of the American States, 7 
Y. Executive Power of Cities, - - 8 

VI. Executive Power of Countries, - - 10 

VII. Nature of the Executive Power, - 12 

VIII. Application of the Principles Considered, 14 



TFIR 



EXECUTIVE POWER 



BXI^ORCnMBNT OK THB BAWS. 



Friends of Laio and Order: 

The foundation principle of constitutional government is the 
truth that there are certain transcendent rules that even rulers 
should obey ; certain supreme laws to which even the highest 
official dignitaries owe a paramount allegiance ; and without 
the sanction of which they would not be entitled to hold and 
exercise the powers of their positions. 

This is true alike in monarchy and in republic, for no man can 
be King or President, except in conformity to some fundamental 
law, which is the source and measure of his right. There ma}', 
indeed, be a usurper of power, ruling by force, in defiance of. 
law, but not a lawful ruler without the condition stated. 

Government consists, essentially, in making and enforcing 
rules of public or private conduct, and in expounding and apply- 
ing those rules in cases of controversy. Hence, government is 
naturally divided into the three great departments of legislative, 
executive and judicial power. 

In the gradual evolution and development of civil government. 



THE EXECUTIVE FOWER. 2 

it has been found that the duties of those departments differ so 
materially in their nature and circumstances, as to require 
different qualifications for proper fulfillment; and that satisfac- 
tory results can be obtained only by providing separate and rela- 
tively independent officers for each department, with suitable 
connecting links between them. 

To allow a person, or several persons who have made a rule 
for future conduct, to determine, after it shall have become a 
subject of controversy, its construction, scope and force, and 
apply it accordingly ; or to permit an executive officer, conclu- 
sively to decide for himself upon the validity, propriety and 
effect of such a law, and regulate its enforcement accordingly, 
would be to permit arbitrary and despotic power to assert its 
sway, no matter what ma}^ be the form of the government. If 
the Legislature enact a law, or an executive officer issue an 
order, or perform an official act, obviously the validity of the 
law, order or act should be referred in any proper case, to a 
disinterested and impartial tribunal for proper examination and 
decision. 

In America the constitution of government has assumed the 
most definite form; and the great departments of power the 
highe'st relative importance and independence. Here the great 
trinity of government is most conspicuously revealed. Legisla- 
ture, executive and judiciary stand forth, each with its distinct 
identity and characteristics, yet are all united in the grand body 
politic of the government, and work harmoniously together like 
the vital organs of the human body. 

If we observe, attentively, the course of the various govern- 
mental operations, we shall soon discover that while all the work 
is imperfect, as everything human must be, the best is done b}^ 
the judiciary, the most defective by the legislative, and the most 
inefficient and inadequate by the executive department of power, 
alike in nation, province, state and municipality. 

It is true that in the proceedings of the courts there is still 
undue delay, uncertainty and expense which should be remedied, 
but in most cases substantial justice seems, finally, to be fairly 
well attained, and the obligation to secure it is universalh' 
acknowledged, while higher rules of personal and official conduct 
are declared and enforced than those which prevail in any other 
department of the government. Violations of duty are every- 



Ik 



TITE EXtXUTIVE POWER. 3 

where earnestly condemned, and, as a general rule, severely 
punished. 

Legislative work is notoriously poor. In quantity it is exces- 
sive, burdening the statute books with worse than needless 
details of mere administration ; in quality it is crude and uncer- 
tain, requiring years of litigation to determine its real meaning 
and effect: in motive too often partial and sectional, instigated 
by some merely local interest or grievance, and not properly 
limited to kindred cases. 

But it is in the executive department of power that the 
greatest surprises await us. We see, as we survey the country, 
executive positions high as the thrones of kings, and richly 
endowed with regal powers, occupied by commanders-in-chief 
who do not command; governors who do not govern; executives 
who do not execute. We see those exalted public officers largely 
occupied with the affairs of the political party to which they 
respectively belong; and, when not so engaged, appearing more 
like the chairmen of important committees, than as the custo- 
dians and administrators of great powers of government. 

It has taken a century to evolve and develop the meaning 
and scope of the national power to "regulate commerce among 
the several states," and after the lapse of that century there 
seems to be no adequate comprehension, in the general public 
mind, of the ^real nature, extent and office of the executive power, 
as vested under the American system of free government. 

The consequences of the almost universal neglect to under- 
stand and exercise the executive power of cities, states and 
nation, have been and are most deplorable. Dangerous classes 
and interests boldly intrude into the fields of active life, and 
audaciously contend with legitimate business and with lawful 
authority for possession and control. Innocence and justice walk 
in dread of contact with disorder and vice, even in the highways 
of the people. The law-abiding do not feel that the strong hand 
of power is always r^ady to uphold and protect them, and repel 
assault. The '-peace and good order of society" seem to be 
preserved almost as much by the forbearance of wrong, as by 
the power of right. 

False ideas of government infest the public mind, and it 
seems to be a common notion that any person may, at pleasure, 
dispute any public authority, and that the only recourse, in such 
a case, is a law suit, more or less protracted, in which the wron^ 



I 



THE EXECUTIVE POWER. 4 

doer will have a chance of success, through some technical defect, 
either in the circumstances of the case or the details of the pro- 
ceeding. 

Let us, therefore, briefly consider the Nature and Duties of 
the Executive Power, with the purpose of promoting, as far as 
may be practicable, its larger and more efficient exercise for the 
protection of the people, and the institutions which characterize 
our civilization. 

For the purposes of this inquiry we do not need to examine 
all the constitutions and laws that affect the various localities to 
which the Law and Order movement extends; but it will be 
sufficient to take convenient examples to illustrate the principles 
involved, and the mode of their application. American institu- 
tions are so largely an inheritance, that we natural^ turn, at the 
outset, to the ancestral land for information of their origin and 
fundamental character. 

The essential principles of executive administration are sub- 
stantially the same in all enlightened countries, however the 
details of their organization and application may vary in different 
localities. 

The Executive is defined by the great American lexicogra- 
pher, Noah Webster, as ''the officer, whether king, president, 
or other chief.magistrate, who superintends the execution of the 
laws; the person or persons who administer the government; the 
executive power or authority in government. " For the proper 
understanding and interpretation of this power, recourse must 
be had to the jurisprudence of its origin; for it is an established 
rule that terms introduced into a law must be understood ia the 
•sense which they bore when first so used; and that when 
imported from another jurisdiction they bring with them the 
construction which they there received, although it may be 
enlarged from time to time, according to a maxim of the common 
law, to embrace new cases within the principle involved, as they 
arise in the progress of human affairs. 

We must therefore turn, in the present case, to the law of 
Great Britain for light on the origin, nature and scope of the 
Executive Power. What it was in that country when our gov- 
ernment was established, it continues to be here, except as 
changed by our constitutions and laws to adapt it to the differ- 
ent conditions and circumstances of our people. 



i 



THE EXECUTIVE POWER. 5 

II. THE EXECUTIVE POWER IN THE MOTHER 

COUNTRY. 

In his luminous and authoritative "Commentaries on the 
Laws of England," the first publication of which was completed 
in 1769, Sir William Blackstone, the most distinguished 
expounder of the English system of law and government, speaks 
as follows of the power under consideration. 

The Supreme Executive Power is vested in a single person, 
the king or queen. 

This executive power of the English nation is so vested by the 
general consent of the people, for the care and protection of the 
communit}^, in subservience to the law of the land, in return for 
which the allegiance of ever}^ individual is due. Bl. Com. Bk. 
I. Ch. Ill, pp. 189, 190. 

It is a maxim in the law that protection and subjection are 
reciprocal. * ^ * Xhe principal duty of the king is, to gov- 
ern the people according to law. ={= * * The king ought not to 
be subject to man, but to God and the law, for the law maketh 
the king. Let the king therefore render to the law, what the 
law hath invested in him, with regard to others, dominion and 
power, for he is not truly king, where will and pleasure rules, 
and not the law. "^ '^~ * The Laws of England are the birth- 
right of the people thereof, and all the kings and queens who 
shall ascend the throne of this realm, ought to administer the 
government of the same, according to said laws. 

The coronation oath binds the sovereign so to govern, and to 
the extent of his power to cause law and justice, in mercy to be 
executed. Ibd., Ch. VI, pp. 233, 236. 

The limitation of the regal authority was a first and essential 
principle in all the Gothic systems of government established in 
Europe. 

In this connection, Judge Blackstone speaks in eloquent 
terms of "those inherent though latent powers of societ}', which 
no climate, no time, no constitution, no contract can ever 
destroy or diminish," thus anticipating the majestic proclan a- 
tion of the inalienable rights of man, made a few years later,, in 
the declaration of American independence. Ibd., C]:i- W\, pp. 
238, 245. 

Civil liberty, rightly understood, consists in protecting the 
rights of individuals by the united force of societ}'. Ibd.. 251. 



7VIE EXECUTIVE POWER. 6 

The king is considered as the generahssimo, or the first in 
mihtary command, within the kingdom. The great end of 
society is to protect the weakness of individuals, by the united 
strength of the communit}^; and the principal use of government 
is to direct that united strength in the best and most effectual 
manner to answer the end proposed. Ibd., 262. 

The king is also the general conservator of the peace of the 
kingdom. Ibd., 266. 

The Proclamations of the king have a binding force, when 

they are grounded upon and enforce the laws of the realm. 

•^ ^ ^ Such proclamations must not contradict the old 

laws, nor tend to establish new ones, but only to enforce the 
» «, ... 

I B execution of such laws as are already in being, in such manner 

^ as the king shall judge necessary. Ibd., 270. 

The sheriff is an officer of very great antiquity * * '^ 

and does all the king's business in the countr}^ 

* ^ :K p^^ 2,Q.X.?> in a four-fold capacity, namely, as a judge 
in certain primary matters; as the keeper of the king's peace; 
in a ministerial capacity, as an officer of the courts of justice; 
and as the king's bailiff, in matters of property and revenue. 
Ibd., IX, 343, 344. 

Of the powers and duties of this officer, more will be said, 
under the title of his office, in a subsequent part of this 
discourse. 

Let us now turn to the new world, and note how the regal 
principle of government has been established here. For in 
some form it is essential to ever}^ effective organization of human 
society. 



III. THE EXECUTIVE POWER OF THE UNITED 

STATES. 

The Constitution of the American Union declares that "the 
Executive Power shall be vested in a President of the United 
States of America." He is required to take an oath or affirma- 
tion that he will faithfully execute his office; and will, to the best 
of his ability, preserve, protect and defend the constitution. He 
is made commander-in-chief of the army and navy, and of the 
militia of the several states, when called into the service of the 
United States. The power to grant reprieves and pardons is also 
vested in him; and with the consent of the Senate it is his right 



THE EXECUTIVE POWER. 7 

and duty to make treaties, and to appoint ambassadors, other 
public ministers, consuls, judges of the Supreme Court, and other 
public officers. 

The constitution also commands that he shall, from time to 
time, give to the Congress information of the state of the Union, 
and recommend to their consideration such measures as he shall 
judge necessary and expedient; and that '<He shall take care 

THAT THE LAWS BE FAITHFULLY EXECUTED. ' ' 

He may be impeached for treason, briber}', or other high 
crimes and misdemeanors, and, on conviction shall be removed 
from office. Con. U. S. Art. 2. Sec. i, 2, 3, 4. 

The national constitution was formed September 17, 1787, 
and went into force by the ratification of nine states, June 21, 
1788. By amendments proposed in 1789, and declared adopted 
in 1791, it was, among other things, provided that "no soldier 
shall, in time of peace, be quartered in any house, without the 
consent of the owner; nor in time of war, but in a manner to be 
prescribed by law;" and that ''the right of the people to be 
secure in their persons, houses, papers and effects, against 
UNREASONABLE searches and seizures, shall not be violated; and 
no warrant shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be 
searched, and the person or thing to be seized;" also that "no 
person shall be held to answer for a capital, or otherwise infa- 
mous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia when in actual service, in time of war or public danger." 
Amendments 3, 4, 5. 

These amendments show, in unmistakable terms, what the 
people of that day thought the power of the government would 
be without such restraints; and how great its authority still is, in 
time of war or public danger. 



IV. THE EXECUTIVE POWER OF THE AMERICAN 

STATES. 

There is a general conformity of the State Constitutions to 
the National model. Let us take that of Pennsylvania, as a con- 
venient example. 

It prohibits unreasonable searches and seizures, and declares 
that the military shall be in all cases, and at all times, in strict 
subordination to the civil power. 



THE EXECUTIVE POWER. ' 

It vests the Supreme Executive Power in the Governor, and 
commands him to take care that the laws be faithfully 

EXECUTED. 

He is made commander-in-chief of the a,rmy and navy of the 
commonweahh, and of the militia, except when in the actual ser- 
vice of the United States. 

He has power to remit fines and forfeitures, and upon a 
specified recommendation, to grant reprieves, commutations and 
pardons, except in cases of impeachment. 

He is required, from time to time, to give to the general assem- 
bly information of the state of the commonwealth, and to recom- 
mend to their consideration such measures as he shall deem 
expedient. 

He may be impeached and removed from office for any mis- 
demeanor therein. [Con. Penn., Art. I, IV, VI, XIV.] 

The enrolled militia of the state are subject to duty, not only 
in case of war or invasion, but also for the suppression of riots, 
and to aid civil authorities in the execution of the laws. 
[Penn. Statutes, 1252. Title National Guard, Sec. 16.] 

The Executive Power is elsewhere similarly vested. For 
example, in New York it is vested in the Governor, who is com- 
mander-in-chief, and is required to take care that the laws are 
faithfully executed. In Massachusetts the Governor is the 
'supreme executive magistrate, and is commander-in-chief of the 
militiary forces of the state; and in Virginia the chief executive 
power is vested in the governor, who is the like commander, and 
bound to take care of the execution of the laws. In the other- 
States substantially similar provisions exist. 



V. THE EXECUTIVE POWER IN AMERICAN CITIES.. 

To illustrate this department of executive authority, let us; 
take an example from the heart of the union, where is to be held: 
the next great exposition of the progress of the world, that we 
may see what means exist for the protection of the people 
who will visit Chicago on that occasion. The organic law of 
cities in the state of Illinois, under which Chicago is governed, 
provides that the chief executive officer of a city shall be a Mayor; 
that he may remove any officer appointed by him, subject to 
restoration if the city council shall disapprove of the removal; 
that the mayor may exercise, within the city limits, the powers 



THE EXECUTIVE POWER. 9 

conferred upon sheriffs to suppress disorder and keep the peace; 
that he ma}^ release any person imprisoned for violation of a city 
ordinance; that he shall, from time to time, give thecity council, 
which consists of a board of aldermen, information relative to 
the affairs of the city, and shall recommend for their consideration 
such measures as he may deem expedient; that he shall take 

CARE THAT THE LAWS AND ORDINANCES BE FAITHFULLY EXECUTED; 
THAT HE SHALL HAVE POWER, WHEN NECESSARY, TO CALL ON EVERY 
MALE INHABITANT OF THE CITY, OVER THE AGE OF EIGHTEEN 
YEARS, TO AID IN ENFORCING THE LAWS AND ORDINANCES, AND 
TO CALL OUT THE MILITIA TO AID IN SUPPRESSING RIOTS AND 
OTHER DISORDERLY CONDUCT, OR CARRYING INTO EFFECT ANY 
LAW OR ORDINANCE, SUBJECT TO THE AUTHORITY OF THE GOVERNOR 
AS COMMANDER-IN-CHIEF OF THE MILITIA. 

For any palpable omission of duty; or any wilful and corrupt 
oppression, misconduct or malfeasance in the discharge of the 
duties of his office, the Mayor may be indicted, fined not exceed- 
ing one thousand dollars, and removed from office. Cities Act, 
Art. 2, Sec. i, 7, 8, 9, 10, 12, 13, 14. 

The RIGHT AND DUTY OF ARREST 

are thus set forth in the criminal code of this state : 

''It shall be the duty of every sheriff, coroner, marshal, 
policeman, or other officer of any incorporated city, town, 
or village having the power of a sheriff or constable, when any 
criminal offense or breach of the peace is committed or attempted 
in his presence, forthwith to apprehend the offender and bring 
him b.efore some justice of the peace, to be dealt with according 
to law; to suppress all riots and unlawful assemblies and to keep 
the peace, and without delay to serve and execute all warrants, 
writs, precepts, and other process to him lawfully directed. 
Sec. .340. 

"An arrest may be made by an officer or by a private person 
without warrant for a criminal offense committed or attempted 
in his presence, and by an officer when a criminal offense has in 
fact been committed and he has reasonable ground for believing 
that the person to be arrested has committed it." Sec. 342. 

Other provisions of a similar character might be cited. 

For other cities of the New World similar provisions have 
been made to secure the due enforcement of the laws, and the 
preservation of the peace. For example, in the state of New 
York, a mavor or sheriff ma3' call out the militia in case of riot. 



THE EXECUTIVE POWER. lo 

tumult, breach of the peace, resistance to process, or imminent 
danger thereof. [R. S. Sec. 77, 79.] 

In Virginia, a ma3or or sheriff may call for troops in case of 
a breach of the peace, tumult, riot, or resistance of law, or immi- 
nent danger of the same. [R. S. Sec. 368, 869.] 

In the Dominion of Canada, the militia may be called out in 
aid of the civil power, in any case in which a riot, disturbance of 
the peace, or other emergency requiring such service occurs, or 
in the opinion of the peace officers is anticipated, as likely to 
occur. [Laws of Can. 621.] 

In the Provinces, taking Ontario as an example, the mayor 
is the chief executive of cities and towns, and it is his duty to be 
vigilant and active at all times, in causing the laws for the gov- 
ernment of the municipality to be duly executed and put in 
force. [R. S. O. p. 1832.] 



VI. THE POWERS AND DUTIES OF SHERIFFS. 

In England, the sheriff is the chief officer of the king in the 
county, and anciently the office of sheriff was one of great dig- 
nity and power. He succeeded the earl, as commander of the 
county. The sheriff is the keeper or governor of the county. 
As the keeper of the peace, both by common law, and by special 
commission, the sheriff is the first man of the county, and supe- 
rior, during hjs term of office, to any nobleman therein. 

He may apprehend and commit to prison all persons who 
break the peace, or attempt to break it. He may, and is bound, 
ex officio, to pursue and take all traitors, murderers, felons, and 
other misdoers, and commit them to gaol for safe custody. 

The sheriff is also to defend his county against the king's 
enemies when they come into the land, and also against any 
rebellion, insurrection or riotous assembly of the people. And 
for this purpose, as well as for keeping the peace, and pursuing 
felons, he may command all the people of his county to attend 
him, which is called the posse comitatus, or power of the county. 

If any resist the sheriff in the performance of his duty, he 
may arrest and imprison them; and he may commit any one for 
an affront, or breach of the peace, committed in his presence. 
[Backus on Sheriffs, 1-8, citing Dalton on Sheriffs, 5, 26, 355 
and Blackstone's Commentaries I, 343-4.] 

In America, the common law generally prevails, modified to 
suit the changed conditions of the people. 



THE EXECUTIVE POWER. ir 

A recent standard American work on Sheriffs, says: The 
chief executive iunctionary of the county is the sheriff. He is 
endowed with substantially the same powers, and is subject to 
the same liabilities as were his predecessors in England, in the 
time of Alfred the Great. The lapse of a thousand years has 
made no substantial change in the nature of his office. Murfree 
on Sheriffs, Sec. i. 

The sheriff is the principal conservator of the peace, for his 
county, and from that function is derived his power of making 
arrests for breaches of the peace, or to prevent the commission 

OF OFFENCES. 

He is required, in his capacity of conservator of the peace, 
to suppress riots, mobs and insurrections; and in the discharge 
of his duty to employ the whole power of the county, including 
an}^ military force that may be necessary and available for that 
purpose. Murfree, Sec. 1160. 

It is the duty of the person who has made an arrest, to take 
the offender, as' soon as convenient, before some magistrate, for 
such further proceedings as law and justice may require. Ibd. 
Sec. 1 167. 

Says another authority: It is the duty of sheriffs, as con- 
servators of the peace, as well as of all constables, coroners, 
marshals, and f)ther peace officers, to prevent every breach of 
the peace, and to suppress every unlawful assembly, affray, or 
riot which may happen in their presence. If there be an affray 
in a dwelling house, the officer may even break its door, to 
preserve the peace. Crocker on Sheriffs, 33. 

The United States Marshal is the officer of the National gov- 
ernment who corresponds to the sheriff under the governments 
of the several states. The marshal's duties and liabilities are 
substantially those of a sheriff. The marshals are conservators 
of the peace of the United States in their respective districts. 
Murfree on Sheriffs, Sec. 10. 

The Illinois constitution requires the election of a sheriff in 
every county, and the statute of sheriffs provides that each 
sheriff shall be conservator of the peace in his county, and shall 
keep the same, suppress riots, routs, affrays, fighting, breaches 
of the peace, and prevent crime; and may arrest offenders on 
view, and cause them to be brought before proper magistrates 
for trial or examination; and that, to keep the peace and pre- 



THE EXECUTIVE POWER. 12 

VENT CRIME, or execute any writ, process, warrant, order or 
decree, he may call to his aid, when necessary, any person, 
OR THE POWER OF THE COUNTY. Sheriffs Act, Sec. 17, 18. 

Similar acts, declaratory of the common-law powers and 
duties of sheriffs, may be found in the statute books of other 
states and countries. A new statute does not necessarily import 
a new law, but is often enacted to affirm and modify, or extend 
some rule of the common law, venerable with age, and crowned 
with the honors of centuries of human service. 

The sheriff is the connecting link between the executive and 
the judicial departments of the government, and acts in a dual 
capacity. As deputy governor he acts in subordination to the 
chief executive, while as the agency by which judicial proceed- 
ings are enforced, he is subject to the orders of the courts of 
justice. 



VII. THE NATURE OF THE EXECUTIVE POWER. 

The nature of the executive power may now be considered. 
The great American Chancellor, James Kent, in his Commen- 
taries on American Law, published in 1826, discussing the execu- 
tive department of the government, among other things, says: 

"The object of this department is the execution of the law; 
and good policy dictates that it should be organized in the mode 
best calculated^ to attain that end with precision and fidelity." 
Vol. I, Lect. XIII, p. 271. 

"When laws are duly made and promulgated, they only 
remain to be executed. No discretion [on that point] is submitted 
to the executive officer. It is not for him to deliberate and 
decide upon the wisdom or expediency of the law. What has 
been once declared to be law, under all the cautious forms of 
deliberation prescribed by the constitution, ought to receive 
prom.pt obedience." Id., 271. 

"The characteristic qualities required in the executive depart- 
ment are promptitude, decision and force." Id. 272. 

'^The command and application of the public force to execute 
law, maintain peace, and resist foreign invasion, ^ ^^ ^ % ^ 
have always been exclusively appropriated to the executive 
department, in every well-organized government upon earth." 
Id., 282. 

In his' learned Commentaries on the Constitution of the 
United States, published in 1833, Joseph Story, one of the most 



THE EXECUTIVE POWER. 13 

distinguished judges of the Supreme Court of the United States, 
and Dane Professor of Law in Harvard University, in discussing 
the Executive Department of the National Government, says: 

"Energy in the executive, is a leading character in the defi- 
nition of good government." Sec. 1417. ''This energy is essen- 
tial to the steady administration of the lav^s; to the protection of 
property against those irregular and high-handed combinations 
which sometimes interrupt the ordinary course of justice; and to 
the security of liberty against the enterprises and assaults of 
ambition, of faction, and of anarchy." Sec. 1417. 

"A feeble executive implies a feeble execution of the govern- 
ment. A feeble execution is but another name for a bad execu- 
tion; and a government ill-executed, whatever may be its theory, 
must, in practice, be a bad government." Sec. 1417. 

"The ingredients which constitute energy in the executive, 
are unity, duration, adequate provision for its support, and com- 
petent powers. The ingredients which constitute safety in a 
republican form of government, are a due dependence on the 
people, and a. due responsibility to the people." Sec. 1418. 

"The command and application of the public force, to exe- 
cute THE LAWS, TO MAINTAIN PEACE, and to rcsist foreign invasion, 
are powers so obviously of an executive nature, and require the 
exercise of qualities so peculiarly adapted to this department, 
that a well orgianized government can scarcely exist when they 
are taken away from it." Sec. 1491. 

''■From the natu7'e and duties of the executive deparment, he 
must possess more extensive sources of information, as well in regard 
to dojnestic, as foreign affairs, than can belong to Congress. Sec. 
1561. 

"The duty imposed on the executive to take care that the 
LAWS be faithfully EXECUTED, follows out the stroug injunctions 
of his oath of office, that he will preserve, protect and defend 
the constitution. The great object of the executive department 
is to accomplish this purpose, and without it, be the form of gov- 
ernment what it may, it will be utterly worthless for offence or 
defence; for the redress of grievances or the protection of rights; 
for the happiness, or good order, or safety of the people." Sec. 
1564. 

Judge Thomas M. Cooley, distinguished as a member of the 
Supreme Court of Michigan, and as Professor of Law in the 
Universit}^ of Michigan, in his Commentaries on the Constitu- 



TFIE EXECUTIVE POWER. 14 

tional Limitations of the Legislative Power of the States of the 
American Union, says: 

''Such powers as are specially conferred by the constitution 
upon the governor, or upon any other specified officer, the legis- 
lature cannot authorize to be performed by an}^ other officer or 
authority; and from those duties which the constitution requires 
of him, he cannot be excused by law." P. 115. 

Such are the powers with which executive officers are invested; 
such are the objects of the creation and organization of the 
executive department of government, and such are the safeguards 
provided here for abuses of the executive power. The disclosure 
of such powers must surprise those who have been accustomed to 
think of the American system of government as lacking in authority 
to maintain supremacy over internal disorders; and, on the other 
hand, must delight the patriot and the philanthropist who 
believe that power is vested in the agencies of government for 
the protection of virtue and the enforcement of justice. 



VIII. APPLICATION OF THE FOREGOING PRINCI- 
PLES TO THE STATE OF THE COUNTRY. 

Surely no machinery of government could be devised more 
suitable to maintain law and order, liberty and justice, progress 
and peace, than that which we have thus briefly reviewed. The 
chief executive o^cer of city, county, state and nation is endowed 
with plenary power to preserve the peace, maintain public order, 
and prevent riot and crime. 

Surely in the presence of this resistless power, every worthy 
person, class and interest of human society should rest in confi- 
dence that any attempted assault will be promptly repelled, and 
any offence actually committed be adequately punished. Surely 
in such a presence all forms of evil should be filled with fear, and 
impelled to flee from impending arrest and penalty. 

WHY THE LAWS ARE NOT ENFORCED. 

Why is it otherwise? Why is it that dissipation, disorder, 
vice and crime so often flaunt the banners of their infamy in the 
faces of law-abiding people, unchecked by the executive voice 
or hand? Why is it that everywhere a feeling akin to that of 
insecurity touches, however faintly, the hearts of the people? 
And if the causes of this unhappy state of the country can be 
discovered, can any means for their cure and removal also be dis- 
closed, or is the condition we lament inseparable from the time 



THE EXECUTIVE POWER 



15 



and circumstances in which we live? These are grave questions. 
There are few or no others which more deeply concern the pres- 
ent happiness or future welfare of the people, and they therefore 
deserve the most anxious and pains-taking efforts for their ade- 
quate solution. 

Let us make the trial. If we should fail, the effort will be 
honorable; and if, by the help of Providence, we should succeed, 
the results will be beneficial, beyond comparison. 

The first cause of the widely-prevalent neglect of executive 
duty, may. be found in the fact that in this ''government of the 
people, by the people, for the people," there has not, hitherto, 
been any general study of the executive power, nor any general 
demand for its efficient exercise. The first remedy to be sought 
is, therefore, in enlarged knowledge of the executive office and 
functions, widely disseminated among the people. Verifying the 
old adage that ^'knowledge is power," such information would 
be sure to produce a potent demand for the protections which the 
executive power was created to give. 

The idea that government is an active, ever-present power, 
keeping constantly informed of the state of the country, and 
ready at every moment to intervene, of its own motion, for the 
protection of the people, seems scarcely to have entered the 
public mind. 

Those who can spare the needed time and means, seek redress 
for wrongs, impending or suffered, by appealing to the courts. 
The humble, whose present burdens are all they can bear, endure 
a new oppression as best they can. The fact that there are 
courts of justice to try proper controversies, and adjudge penalties 
incurred, seems to have had the singular effect of blinding both 
the people and their public officers to the greater fact that the 
protection of the people in the enjoyment of life, liberty, and the 
pursuit of happiness, is the ever-present duty of the executive 
power, and in all ordinary cases, requires no law-suit, except 
occasionally a criminal prosecution, following an arrest, for the 
infliction of a penalty incurred. 

The constitution and laws do not say that Sheriff, Marshal, 
Mayor, Governor and President shall enforce the laws and pro- 
tect the people, provided that some other department of the 
government shall request, or some particularly aggrieved citizen 
shall petition therefor; but the command is imperative that the 
President shall take care that the laws be faithfully executed; 



THE EXECUTIVE POWER. i6 

and the same command is repeated to Governor and Mayor, and 
extended to Sheriff and Marshal. 

Over this high executive power and duty the other departments 
of the government have no control. They can neither annex 
conditions on which it shall be exercised, nor relieve the incum- 
bent of executive place from the obligation to perform the peculiar 
duties of his office. 

In the enforcement of the laws, the constitution, alike of state 
and nation, distinctly intends that the executive shall move in 
the first instance, and without any special application, as the 
occasion ma}'' require. The constitution presupposes that by 
means of the facilities at his command, the executive will be at 
all times more fully informed of the condition of the people; of 
the dangers that threaten them; the evils that disturb their peace; 
and their needs of protection and defence, than any other person 
or public officer within the jurisdiction. It is for this reason that 
the constitution requires the chief executive to give the legislative 
body information of the state of the country, which it is not pre- 
sumed that they would otherwise acquire. 

Acting in good faith and within the limits of his jurisdiction, 
the executive officer is as independent, and as fully protected as 
the legislator or the judge. All may err, but there is, in such a case, 
no personal liablity for the consequences of the error. Were the 
rule otherwise, no prudent person would consent to hold an 
executive office. [Burton vs. Fulton, 49 Penn. State R. 151.] 

It is only when an executive chief usurps a power not within 
his province, or violates a law which he ought to enforce, that 
his orders will not afford protection to the subordinates to whom 
they are directed for execution. 

It is only when such an officer acts without authority, without 
probable cause, and with actual malice, that he deserves impeach- 
ment and punishment. 

Judicial decisions upon the nature, extent and limitations of 
the executive power and the validity, or excusability of executive 
acts in the enforcement of the laws and the preservation of the 
peace, are so few and limited, that for the most part, resort must 
be had to the fundamental principles of constitutional and com- 
mon law, for the solution of the problems that arise in this con- 
nection. 

Thus, actual government is by the execictive power, under laws 
enacted by popular representatives, with judicial safeguards 



THE EXECUTIVE POWER. 17 

against oppression, through abuses of power and violations cf 
law. The constitution plainly intends that in very fact the execu- 
tive shall take care that the laws be faithfully executed; disorder 
promptly suppressed; crime firmly prevented; the peace effectu- 
ally preserved, and the people adequately protected. These 
things can be done only by an executive ever on the alert, and 
ready for instant action as the emergency may demand; and the 
executive department of government is created for those express 
purposes, and is endowed with ample power for every contin- 
gency that may arise. 

Whether after a suppression of disorder and an enforcement 
of the laws, judicial prosecutions shall be ins.ituted, is an entirely 
different matter. The judicial authorities have their own means 
of proceeding for violations of law; and so far as the executive 
is concerned, he must judge, when obedience of law has been 
secured, whether the public welfare requires further proceedings 
on his part. The vesting of the power of pardon in the chief 
executive is a plain indication of the nature and extent of the 
executive discretion in matters relating to violators of law who 
have submitted to its requirements and acknowledged its 
supremacy. 

But it must ever be borne in mind that there is no discretion 
to let law-breaking continue; none to let the law be defied. The 
wrong-doer must make his unconditional surrender to 
the commander before he is in a position to ask for favorable 
terms. 

PARTISANSHIP. 

But another cause of executive inefficiency deserves a passing 
notice. That cause is the demoralizing influence of political 
partisanship. It is perfectly obvious that with the power to com- 
mand the aid of every able-bodied man, including any military 
force within the jurisdiction, any law of the nation, any law of a 
state, any law of a city can be enforced by the executive officer 
whose duty it is to enforce it, in case he really desires such 
enforcement, and has the courage requisite for his position. 
With practically unHmited power of law-enforcement, the execu- 
tive can surely find a way to proceed, if he have the will to do 
so. The old maxim is true: ''Where there is a will, there is also 
a way!" 

The chief reason why there is so much neglect of executive 
dutv in relation to the laws enacted to secure the peace and good 



THE EXECUTIVE POWER. i8 

order of society, by closing liquor saloons, theatres, and other 
secular places on Sunday, is well illustrated by the following true 
story: 

In a city in which there were numerous American theatres, 
one of them commenced giving plays on Sunday evening in vio- 
lation of the law. The manager of the leading theatre of the 
city waited on the Mayor, and the following dialogue took place: 

Manager: Mr. Mayor, I have called to urge upon you the 
importance of preventing the opening of the theatres on Sunday. 
It has just begun here, as you know, and you can stop it, if you 
will, but if you do not, I must give you warning that all the 
theatres will open; though none of the prominent managers want 
it so. We therefore ask you to stop the evil while you can. 

Mayor : Yes, Mr. Manager, I know what you say, but if I 
should close the American theatres, I should be compelled to 
close the German theatres also, and that would hurt the party. 
So I can not do it. 

Manager : That is just what is the matter, Mr. Mayor. You 
think more of your party than you do of the public good, and 
your official duty. Thank God! I have no such politics. 

Mayor: "\A'ell, I can't help it. I must stand by the party. 

The manager went his way; and soon all the theatres 
opened on Sunday night, and have continued Sunday perform- 
ances to th'is day — for the good of the party ! 

Such violations of law as this story illustrates are notorious 
in all parts of the country, and fully warrant the statement that 
excessive Political Partisanship is to-day the deadliest living foe of 
the peace, good order and prosperity of the country. 

It cripples executive administration, and for the sake of their 
votes permits the dangerous classes to prey upon the people, 
working incalculable injuries to them, through the dram-shop, 
the gambling-house, and other fortresses, schools and asylums 
of disorder and vice. The evils of that partisanship can not 
possibly be overrated; the necessity for reform can not possibly 
be exaggerated. But those evils will continue till the people 
rise and break the chains of partisan bondage, and insist, as a 
condition precedent of their support, that devotion to the coun- 
try, and ability to promote the general welfa.-e, and not mere 
devotion to party, and mere ability to promote its success, shall 
determine the selection of the persons by whom the great powers 
of government shall be held and exercised. 



THE EXECUTIVE POWER. 19 

However other reforms may be neglected, this grand work of 
Ivaw Enforcement cannot wait. It must go forward, for a crisis 
that threatens the integrity of the government has been reached, 
not merely in one section, but in all parts of the country. The 
law-breakisrs must be compelled to submit to the laws; the law- 
abiding must be put in control of every department of power; 
and the laws must be made in fact, as they are in theory, 
supreme. We do not object to political parties, for they are indis- 
pensable to free government; but we do object to all partisans 
who neglect or refuse to enforce the laws '^because it will hurt 
the party P^ If an individual betray his country, w^e hold him 
deserving of death for his treason, and if a partisan or a party 
violate law and commit injustice to secure success, we should be 
equally ready to condemn the wrong, and insist that the laws 

MUST BE OBEYED. 

WASHINGTON ON GOVERNMENT BY FACTION. 

In the language of Washington, in his Farewell Address to 
the People of the United States, we declare anew that "«// 
obstructio7is to the execution of the laws, all co77ibinations and asso- 
ciations, under whatever plausible character, with the real design 
to direct, control, counteract or awe the deliberation and action of 
the constituted authorities, are destructive of the fiindameiital prin- 
ciple of the government. They serve to orga?tize faction, to give it 
an artificial and extraordinary force; to put in the place of the dele- 
gated power of the nation the will of a party, often a small but 
artful and enterprising minority of the conwmnity ; and, according to 
the alternate triumphs of different parties, to make the public admi?i- 
istration the mirror of the illconcerted and incongruous projects 
of faction, rather than the organ of consistent and ivliolesome plans, 
digested by cominon councils and modified by mutual interests. 

Rarely have these wise counsels of the Father of his country 
been more urgently needed than at the present time. It is right 
for good citizens to divide on political questions if they will; but 
it is not right for them to divide on questions of Public Order 
and Morals; for in comparison with those crown-jewels of the 
enlightened state, merely political differences of opinion are 
insignificant. Among the proofs of fitness for self-government, 
there is none higher than the ability to differ on a mere question 
of political policy, and to unite on a question of good govern- 
ment and public morals. That one agrees with me in regard to 
the tariff, is no more a reason why I should support him for 



THE EXECUTIVE POWER. 20 

an executive or a judicial office, than why I should recommend 
him as an expert book-keeper, or surveyor. 

WHAT THE EMERGENCY REQUIRES. 

The commanding need of our time is for executive officers who 
understand and ivill exercise the executive power. The laws do 
indeed need improvement, and judicial proceedings, reform, but 
not as urgently as existing laws need better enforcement. In his 
most exalted character of dignity and power, the supreme execu- 
tive is called the chief magistrate. In that character he organ- 
izes the administration of his department of the government, 
under appropriate orders, rules and regulations, and carries into 
effect with promptitude and efficiency, that great body of the 
laws which do not require any judicial interpretation or decision, 
but only executive direction and application, this is govern- 
ment. The legislative department acts by statute; the judicial 
by judgment; and the executive by proclamation and order; and 
each in its province is supreme. The first enacts, the second 
expounds, the third executes; and the resuJt of that triple 
supremacy is not chaos, but harmony and power. If the existing 
laws were now only sufficiently enforced, most of the evils against 
which new legislation is demanded, would largely disappear. 

The mighty hand of executive power was created to protect 
and defend the people and their institutions against the assaults 
of foes within,^ as well as against the attacks of enemies without. 
Let it no longer neglect its duty. On the same table where 
waits the pen of the Chief Magistrate, rests also the sword of the 
Commander-in-Chief. If evil doers heed not the executive order 
and proclamation, the Constitution intends that they shall feel 
the sharper argument of arms. The Constitution knows nothing 
of crime and disorder, defiant and unsubdued. It places at the 
disposal of the Commander-in-Chief all the civil and military 
forces of the government, and requires him to Execute the Laws, 
and maintain peace. There are no conditions; there is no alter- 
native. THE LAWS MUST BE OBEYED. 

The MODE in which the laws shall be enforced is not pre- 
scribed. That is wisely left to the good judgment and discretion 
of the executive, and may vary according to the exigencies of the 
particular occasion. The constitution grants power, and 
demands a result; and he who cannot give the result has no 
real right to hold the power. Executive office is no place for 
timidity and indecision. Alike in monarchy and in republic, 



THE EXECUTIVE POWER. 21 

but more especially in the latter, the safety, and peace of the peo- 
ple depend on the integrity, the wisdom, the strength and the 
activity of the executive power. In the suppression of riot and 
disorder, and the prevention of crime, it may, be necessary to 
destroy property, and even to take human life; and the people 
have made their chief magistrate the judge of that necessity, and 
have given him authority to execute the laws, ''peaceably if he 
can, forcibly if he must." It is a serious thing to destroy prop- 
erty; it is a dreadful thing to take human life; and the just execu- 
tive will make the utmost effort, by warning, appeal, and com- 
mand, to secure the supremacy of the laws without injury to 
either; but if riot and crime will not heed his warning, appeal 
and command, he must meet the emergency according to his 
oath of office, and those who wilfully resist the law must fall. 

To take care that the laws be faithfully executed, is diligently 
to observe and inquire whether they are obeyed; and in case any 
violation of law appears or is discovered, to admonish the offend- 
ers to cease their disobedience; and if the offence be serious, to 
cause the arrest and detention of the law breakers for punish- 
ment in due course of law; and if in other cases the preliminary 
warning is not promptly followed by compliance, to apply, with- 
out needless delay, such force as may be necessary to secure 
obedience of the laws; and in case the wrong committed can be 
undone, to compel its prompt undoing; and if a repetition of the 
offence be attempted or threatened, to interpose the necessary 
means of prevention. To preserve the peace, to maintain order, 
to protect the people — these are the purposes for which the laws 
should be faithfully executed. 

It is an impressive truth that just in proportion as the execu- 
tive authority is alert, active and determined, will its moral 
power be found adequate, without a resort to physical force. 
There will be little resistance to law, when it is known that the 
law is equally able and ready to protect the faithful, and to 
punish the refractory. 

The principle of executive authority is essentially the same 
in family, school and state. Insubordination is fatal to peace, 
to prosperity, to happiness. 

The claim that because a considerable number of persons in 
a particular locality, are opposed to a particular law, it can not, 
or should not be enforced, is too imbecile for serious discussion. 
If the laws are defective, amend them; if oppressive, repeal 



THE EXECUTIVE POWER. 22 

them, but while they stand, enforce them. Onl}' this, is rational 
government. 

It is, therefore, a high and imperative duty to exalt the regal 
principle of human government in the affections of the people; 
to lead them to revere and study its majestic nature and lofty 
duties; and to encourage them to support with all their power 
those executive officers upon whose courage and fidelity they 
must ever depend for protection and defence. However perfect 
may be the laws, and the judicial decisions that expound them, 
the people cannot enjoy the blessings of a reign of Law and 
Order, without a faithful and efficient exercise of the executive 

POWER. 

The American Republic is not the absence of government. 
It aims to be the very perfection of government. In the name 
and by the authority of the people, it exercises sovereignty, 
enacts and enforces law, maintains its independence among the 
nations of the earth, makes war, and establishes peace. 

Thus august, supreme and irresistible is the regal principle 
in free government, and upon its vigor, activity and wisdom, 
depends the actual enjoyment of the rights and liberties of the 
of the people. 



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